Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 497
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 497
File number(s): SYG 2316 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 June 2022 Catchwords: MIGRATION – Administrative Appeal Tribunal – Student visa – whether there was breach of s 359A – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 359A
Migration Regulations 1994 (Cth)
Cases cited: Minister for Immigration v Li (2013) 249 CLR 332 Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 15 June 2022 Date of hearing: 15 June 2022 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the First Respondent: Ms Meaney ORDERS
SYG 2316 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HITESHKUMAR RAMANBHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
28 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male citizen of India. The applicant came to Australia in September 2014 as the holder of a Subclass 573 Student visa. The applicant applied for a further Student (Temporary) (Class TU) visa (“Student Visa”) on 23 March 2017.
A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Student visa on the basis that the applicant did not satisfy the requirements of cl 500.213 of the Migration Regulations 1994 (Cth) (“the Regulations”) as evidence provided with the visa application did not demonstrate that the applicant had achieved a score of 5.5 or higher IELTS (English language test) he undertook on 26 December 2016. In that test, the applicant only achieved an English language test score of 4.5.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 20 July 2018, the Tribunal affirmed the decision to refuse the applicant his Student visa.
The applicant now seeks judicial review of the Tribunal’s decision
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
At a Tribunal hearing, on 17 July 2018, the applicant gave evidence that he withdrew from his studies in accounting and business after his visa application was refused. The applicant said that he had not studied since in or around March 2017. The applicant said by the time he had stopped his studies, he had passed six units of study in the course that he was undertaking. The applicant also said that he was a bit depressed because of family problems back in India.
The applicant gave evidence that he had not successfully completed any courses since he came to Australia in 2014, but if he was given a bit more time he would certainly make an effort to do the English language test again and try and improve on his test results.
In its decision record, the Tribunal noted that the issue before the delegate was whether the applicant met criterion in cl 500.213. However, the issue then before the Tribunal was whether, as at the time of the decision, the applicant met the enrolment requirements for a Student visa.
The Tribunal noted that cl 500.211 of the Regulations relevantly requires, as of the time of the decision by the Tribunal, that the applicant had to be enrolled in an approved course of study: (see; cl 500.211(a)). This is defined as a full-time registered course approved for the provision to overseas students.
The Tribunal accepted that the applicant had reacted to family problems in his home country and this had impacted upon his mood and sense of well-being. The Tribunal noted that there was no medical evidence before the Tribunal which would demonstrate the applicant had, during the period in or around April 2017 to July 2018, a mental health condition resulting in him being unable to study.
In any event, on the basis the available evidence, the Tribunal was not satisfied that, at the time of the decision, the applicant was enrolled in the course of study and accordingly, clause 500.211 of the Regulations was not met. In these circumstances, the Tribunal affirmed the decision to refuse the applicant his Student visa.
GROUNDS OF JUDICIAL REVIEW
In an Initiating Application filed with the Court on 21 August 2018 the applicant sets out a single ground of judicial review as follows verbatim:
1. The Tribunal failed to provide adequate opportunity to the Applicant and this resulted in a miscarriage of justice and has vitiated the procedural fairness .
Particulars
The applicant was self represented and gave evidence to the effect that he had family related problems back in India and hence he was depressed and could not continue his studies. The Tribunal in para 13 has observed as below “The Tribunal accepts the applicant has reacted to family problems in his home country and this is had impacted on his mood and sense of well being”. Having accepted the evidence that the family related problems has affected his studies to state that no medical evidence was provided in this case is incorrect . Being a self represented applicant the Tribunal should have informed the applicant the adverse conclusion it would draw on account of absence of medical certificate and should have provided an opportunity to the applicant to explain the absence of medical certificate or should have granted time to provide a medical certificate. Under these circumstances the failure to notify the adverse inferences violates Sec 359AA of the Act as this was the reason or part of the reason for affirming the decision under review. The failure to adjourn the proceedings to give time to produce the medical certificate , vitiates the principles of natural justice and the provisions of law resulting in miscarriage of justice and amounts to unreasonableness as upheld by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 .
THE APPLICANT’S SUBMISSIONS
The hearing was conducted by video conference facility. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books, and that the first respondent’s written submissions had been interpreted to him. The Court also ensured that the applicant was in possession of a pen and paper so that he could take notes during the course of the hearing should he so wished to
At the commencement of the hearing, the Court explained that it was undertaking judicial review not merits review and the difference between these types of review. The Court also explained the process by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided by the applicant in support of his case. An Affidavit filed on 21 August 2018, which attached the relevant Tribunal decision, merely repeated the complaint in respect of the medical certificate outlined in the ground of judicial review.
The applicant told the Court that he was feeling unwell and asked for the hearing to be postponed to another day. The adjournment application was refused. The Court took into account the failure to provide any written submissions and other material in support of the applicant’s case. The hearing was also not expected to take more than half an hour.
The Court explained to the applicant that the issue in the case was that at the time of the Tribunal’s decision the applicant did not have a valid Certificate of Enrolment in an approved course of study. The applicant was asked if he had anything to say on this issue.
The applicant told the Court that he was not able to put forward his best case at the Tribunal as he was feeling a bit depressed at the time as his father was in hospital in India.The applicant had nothing else to put to the Court
At the conclusion of the first respondent’s oral submissions the applicant was asked if he wish to state anything further in reply. The applicant answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
On behalf of the first respondent, it was submitted that the allegation that the Tribunal breached s 359AA of the Migration Act 1958 (Cth) (“the Act”) was misguided. The word “information” as it appears in s 359A(1) of the Act refers to knowledge of relevant facts or circumstances communicated or received by the Tribunal: (see; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [24]). It does “not encompass the Tribunal subjective appraisals, thought processes or determinations”. Nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps”. To the extent that the Tribunal relied on the absence of a medical certificate, it did not constitute “information” for the purposes of s 359A of the Act.
There was information in the provider Registration and International Student Management System (“PRISMS”) that the applicant was not and had not been enrolled in an approved course of study since 25 July 2017. An excerpt of the transcript of the audio recording of the Tribunal’s hearing (Exhibit 2) indicates that the decision was informed, not by the contents of the PRISMS records, rather by the applicant’s own evidence that he was not enrolled in the course of study. The applicant’s own evidence is not information for the purposes of s 359A: (see; s 359A(4) of the Act).
The allegation that the Tribunal unreasonably failed to adjourn the proceeding to allow the applicant time to produce a medical certificate failed to appreciate that the Tribunal was not under obligation “to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: (see; Minister for Immigration v Li (2013) 249 CLR 332 at [82]).
Even if the Tribunal had adjourned the proceedings in order to allow the applicant the opportunity presented a medical certificate to the Tribunal, the outcome of the review would not have changed, as the issue became whether or not he was enrolled in a registered course. The applicant was plainly on notice of that issue.
CONSIDERATION
The applicant came to Australia in 2014 on a temporary student visa. Since then, the applicant has not completed any approved course of study. In order to be granted the type of Student visa the applicant sought, as at the time of the decision by the Tribunal, the applicant was required to have a valid and current certificate of enrolment in an approved course: (see; cl 500.211(a) of the Reguilations). The applicant had no such certificate of enrolment.
The issue of the certificate of enrolment was raised by the Tribunal member during the course of the proceeding. The following exchange took place, via an interpreter:
Member: When you say you finished your studies, what do you mean?
Applicant:Mr Member, he says he is a bit nervous at the moment and he says reason for cancelling halfway through his course, he has not finished the course.
Member: When did you stop studying in a course?
Applicant: He says it’s, his study stopped when his file got rejected and at that point, he also had some family problems and he was a little bit depressed, but from that point of time he had already completed six subjects.
Having found that there was no Certificate of Enrolment in existence as at the time of the decision, the conclusion of the Tribunal that the Student visa refusal decision must be affirmed was the only decision that was open to the Tribunal.
Even if the Tribunal had adjourned the matter, and the applicant provided the medical evidence that he claims he wished to, it would not have made any difference to the outcome. The applicant did not have a Certificate of Enrolment.
Even if there was a procedural error by the Tribunal, which the Court does not find, any procedural error would have been immaterial to the overall outcome. The Tribunal could not grant the applicant the visa he sought as he had failed to satisfy a condition precedent for the grant of the visa.
The ground of judicial review has no merit.
CONCLUSION
The application is dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 June 2022
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